~Prudentia Conscientia Ingenium Occursus, 2016~

BCWCLC-005P

IN THE HON’BLE SUPREME COURT OF ZELCOVA

(Special Appellate Jurisdiction)
SLP No ***** of 2016

IN THE MATTER OF
________________________________________________________________________
Coatland Coal Corporation Zelcova Private Limited (“CCZPL”) …Petitioner
v.
Thermopowergen Private Limited (“TPL”)

…Respondent

………………………………………………………………………………………………

MEMORANDUM FOR THE PETITIONER

……………………………………………………………………………………………...

COUNSEL FOR PETITIONER

~Memorandum for Petitioner~

TABLE OF CONTENTS
TABLE OF
CONTENTS ..........................................................................
........................... i
LIST OF
ABBREVIATIONS .....................................................................
....................... iii
INDEX OF
AUTHORITIES........................................................................
...................... iv
STATEMENT OF
JURISDICTION.......................................................................
.......... vii
STATEMENT OF
FACTS .............................................................................
................. viii
ISSUES
RAISED ............................................................................
.................................... x
SUMMARY OF
ARGUMENTS .........................................................................
.............. xi
ARGUMENTS
ADVANCED ..........................................................................
.................. 1
1.

This Special Leave Petition is maintainable before this Hon’ble

Court. ................. 1
1.1.

This Court has the power to grant special leave to

appeal ............................... 1

1.2.

Scope of this
jurisdiction ......................................................................
............ 1

1.3.

Erroneous judgment of the High

Court ............................................................ 2

1.4.

Plenary powers of the

Court: ............................................................................
2

2. There exists a valid arbitration agreement between the Parties which is not
opposed to public
policy: ...........................................................................
..................... 2
2.1.
The requirements under Section 7 of The Act are
satisfied: ............................ 2

2.2.

The Arbitration Clause in 33.1 is not opposed to public

policy: ...................... 3

2.3.

Malaylaka is the venue of arbitration and not the seat of

arbitration: .............. 6

2.4.

Part I of the Act will be applicable to the present

proceedings: ....................... 8

3. The Court has a mandate to refer the parties to arbitration under Section 8 of
the
Arbitration and Conciliation Act,
1996: .......................................................................... 8
3.1. Section 8 of The Act is peremptory in nature and the parties must be referred
to arbitration under the
same: .............................................................................
......... 8
3.2.

Conditions for applying Section 8 of The Act are

satisfied ........................... 10

4. There are no circumstances to grant stay of the Bank Guarantee in the present
case: .............................................................................
.................................................. 14
4.1. The Bank Guarantee is also covered by the subject matter of the arbitration
agreement: ........................................................................
......................................... 15
4.2.

The jurisdiction of the Civil Court is

ousted: ................................................. 15
i
~Memorandum for Petitioner~

4.3. The Courts have followed the principle of non-interference in encashment of

bank
guarantees: .......................................................................
................................. 17
4.4.

There is no fraud or irretrievable injustice in the present

case: ...................... 18

PRAYER ............................................................................
............................................... 19

ii
~Memorandum for Petitioner~

LIST OF ABBREVIATIONS
AIR

All India Reporter

Paragraph

Anr

Another

ArBLR

Arbitration Law Reporter

Art.

Article

Ed.

Edition

EWHC

England and Wales High Court

HC

High Court

Hon’ble

Honourable

Ltd.

Limited

Ors.

Others

SC

Supreme Court

SCC

Supreme Court Cases

SCR

Supreme Court Reports

Sec.

Section

SLP

Special Leave Petition

UOI

Union of India

Vol.

Volume

iii
~Memorandum for Petitioner~

INDEX OF AUTHORITIES
Statutes
Indian Contract Act,
1872 ..............................................................................
................. 4, 5
The Arbitration and Conciliation Act, 1996 ................................... 2,
3, 8, 9, 10, 11, 12, 15
The Arbitration and Conciliation Act,
1940 ............................................................... 12, 13
The Constitution of India,
1950 ..............................................................................
............ 1
Supreme Court Cases
Agri Gold Exims Ltd. v. Sri Lakshmi Knits & Wovens & Ors., (2007) 3 SCC
686 .......... 9
Associate Builders v. Delhi Development Authority, 2014 (4) ARBLR
307(SC) ............ 4
Atlas Export Industries v. M/S Kotak & Co., (1999) 7 SCC
61 ......................................... 5
BalakrishnaIyer v. Ramaswami Iyer, AIR 1965 SC
197 .................................................... 1
Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552
...................................................................................
.................................................. …6, 8
Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd. and Ors., AIR 2011 SC 2507 12
Branch Manager, Magma Leasing & Finance Limited & Anr. v. Potluri Madhavilata &
Anr., (2009) 10 SCC
103 ...............................................................................
................... 10
Chatterjee Petroleum v. Haldia Petro Chemicals, 2013 ARBLR
(SC). .............................. 6
Enercon (India) Ltd. And Ors. v. Enercon Gmbh And Ors., Civil Appeals 2086 & 2087
of
2014...............................................................................
.................................................. 6, 7
Food Corporation of India and Anr. v. Yadav Engineer and Contractor, AIR 1982 SC
1302...............................................................................
.............................................. 13, 14
Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums, (2003) 6 SCC
503................................................................................
....................................................... 9
K. K. Modi v. K. N. Modi, (1998) 3 SCC
573. .................................................................. 3
Kalpana Kothari v. Sudha Yadav, (2002) 1 SCC
203 ...................................................... 13
Kunhayammed v. State of Orissa, (2000) 6 SCC
359 ........................................................ 1
M. Dayanand Reddy v. A.P. Industrial Infrastructure, 1993 AIR
2268 ........................... 11
M/s. Dozco India Pvt. Ltd. v. M/s. Doosan Infracore Co. Ltd., (2011) 6 SCC
179 ........... 7
M/s. Sundaram Finance Limited and Anr. v. T. Thankam, 2015 (2) R. A. J. 526
(SC). .. 17
iv
~Memorandum for Petitioner~

ONGC v. Saw Pipes, (2003) 5 SCC

705. ........................................................................... 4
P.S.R. Sadhanantham v. Arunachalm and Anr., (1980) 3 SCC
141 ................................... 2
Pradeep Anand v. ITC, AIR 2002 SC
2799 ........................................................................ 9
Rashtriya Ispat Nigam Ltd. v. M/S. Verma Transport Co., 2006 (7) SCC
275 ................ 12
Reliance Industries v. Union of India, Arbitration Petition No. 27 OF
2013 ..................... 6
Santhosh v. Mul Singh, AIR 1958 SC
321 ......................................................................... 2
Shakti Bhog Foods Ltd. v. Kola Shipping Ltd., (2009) 2 SCC
134 ................................... 3
Tarapore & Co. Madras v. M/s. V/o Tractors Export, Moscow & Anr., [1969] 2 SCR 920
...................................................................................
........................................................ 17
Union Of India v. Popular Construction Co., 2001 Supp (3) SCR
619 ............................ 15
UP State Sugar Corporation v. Sumac International Ltd., AIR 1997 SC
1644 ................ 17
VISA International Ltd. v. Continental Resources (USA) Ltd., (2009) 2 SCC
55............. 3
High Court Cases
Arti Jethani v. Daehsan Trading (India) Pvt Ltd., 2011 (4) AD DEL
668 ....................... 15
Jashu M. Patel v. Shivdatta R. Joshi, 2003 (2) ARBLR
479 ............................................ 13
M/s. Johnson Rubber Ind Ltd. v. M/s. Shree Conveyor System Pvt. Ltd., C.M.(M)
No.960/2013 &
C.M.No.14494/2013 .................................................................
.............. 12
Sasan Power Limited v. North American Coal Corporation India P. Ltd., FA 310 of
2015
...................................................................................
...................................................... 5, 6
Suresh Arjundas Bakhtiani v. Union Of India And Anr., 1991 (1) BomCR
26 ............... 16
Zillion Infra Projects (P) Ltd. v. Fab-Tech Works & Constructions Pvt. Ltd. & Anr.,
224
(2015) DLT
371 ...............................................................................
................................. 18
Foreign Decisions
Bolivinter Oil S.A. v. Chase Manhattan Bank N.A., [1984] 1 LLR
392 .......................... 18
Czarnikow v. Roth Schmidt, [1922] 2 K.B.
478 ................................................................. 4
Edward Owen Engineering Ltd. v. Barclays Bank International Ltd., (1978) 1 All ER
976: 1978 QB 159: (1977) 3 WLR 764,
CA. .................................................................... 18
Hindustan Paper Corporation Ltd. v. Keneilhouse Angami, [1990] 68 Comp Cas 361 ...
16
Turkiye v. Bank of China, [1996] 2 LLR
611 .................................................................. 18
v
~Memorandum for Petitioner~

United Trading Corpn. S.A. & Murray Clayton Ltd. v. Allied Arab Bank Ltd., [1985] 2
LLR 554,
CA ................................................................................
.................................... 18
Books and Commentaries
Ansons Law of Contract, (J Beatson, ed. 28th Edition Oxford University Press,
Oxford,
2002.). ...........................................................................
...................................................... 4
Ashwinie Kumar Bansal, ARBITRATION: PROCEDURE AND PRACTICE, 538 (1st edn., Lexis
Nexis Butterworths, New Delhi, India,
2009) .................................................................... 9

vi
~Memorandum for Petitioner~

STATEMENT OF JURISDICTION
The Petitioner approaches this court under its special appellate jurisdiction of
the Hon’ble
Supreme Court under Article 136 of the Constitution of Zelcova, 1950.1

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave
to appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or
made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or
order passed or made by
any court or tribunal constituted by or under any law relating to the Armed Forces.
vii
~Memorandum for Petitioner~

STATEMENT OF FACTS
Zelcova is common law country similar to India. Malaylaka is a country similar to
that of
USA. Forslyeth is the financial capital of Zelcova. Thermopowergen Private Limited
(“TPL”) is a subsidiary of ZelcovaPowergen Limited (“ZPL”), registered under the
Companies Act, 2013 of Zelcova. Coatland Coal Corporation Zelcova Private Limited
(“CCZPL”) also registered under the same Act, is a subsidiary of Malaylaka Power
Solutions Private Limited (“MPPL”) situated at Malaylaka.
TPL and CCZPL entered into a Coal Supply Agreement (“Agreement”) for a period of
three (3) years with CCZPL starting from 1st May, 2014 pursuant to TPL’s obtaining
a
government contract for electricity supply.
As per the agreement due to delay in payment beyond 100 days, CCZPL requested
advance payment for further shipments. TPL cited failure in quality control test as
per
Clause 18.1 of the Agreement as the reason for withholding payments. CCZPL
contested
the said clause due to non-intimation of the quality test failure within 7 days. It
also
contended that payments were due for the old shipments and refused further supply
until
payment.
Due to disputes relating to payment, CCZPL invoked Arbitration clause as per 33.1
of the
Agreement which stated that “both Parties agree to arbitrate in Malaylaka, and the
law
of Malaylaka will apply to this Agreement”.
Meanwhile TPL obtained a stay on invocation of Bank Guarantee from the City Civil
Court. CCZPL filed objections along with an interim application under Section 8 of
the
Arbitraiton and Conciliation Act, 1996. No order was passed by the Court and thus
CCZPL approached the High Court which passed the following two orders:
a) TPL misled Forlyeth District Court by not disclosing the Arbitration clause,
therefore set asides the stay granted by the said Forslyeth Court and Directs the
TPL to extend the bank guarantee.

viii
~Memorandum for Petitioner~

b) Dismissed the plea of CCZPL for arbitration under clause 33 of agreement, as

clause 33.1 is against the public policy of Zelcova.
Aggrieved CCZPL has filed this appeal.

ix
~Memorandum for Petitioner~

ISSUES RAISED
1. Whether this Petition under Art. 136 of the Constitution maintainable;
2. Whether the arbitration agreement is opposed to public policy and hence invalid;
3. Whether TPL misled the Court by not disclosing the Arbitration Agreement and
there exists ground for interference under Section 8 of the Arbitration and
Conciliation Act, 1996;
4. Whether there are circumstances to grant stay of the bank guarantee in the
present case.

x
~Memorandum for Petitioner~

SUMMARY OF ARGUMENTS
1. THIS SPECIAL LEAVE PETITION IS MAINTAINABLE BEFORE THIS HON’BLE COURT.
The Petitioner submits that this petition is maintainable before this Hon’ble
Court. This
Court has the power to grant special leave to Appeal under Art. 136 and the scope
of this
jurisdiction is very wide. The Court can interfere with an erroneous order of the
High
Court as its powers are plenary. The present circumstance calls for exercise of its
discretionary jurisdiction under the said section.
2. THERE EXISTS A VALID ARBITRATION AGREEMENT BETWEEN THE PARTIES WHICH
IS NOT OPPOSED TO PUBLIC POLICY:

The Petitioner humbly submits that there is a valid arbitration agreement in the
present
case as the requirements of Section 7 are satisfied. The arbitration agreement is
not
opposed to public policy. Further two parties are not precluded from arbitrating
under a
foreign law and the intention of parties must be given due consideration in this
regard.
The terms of the agreement are to be construed to hold that Malaylaka is the venue
and
not the seat of arbitration and therefore Part I of the Arbitration and
Conciliation Act,
1996 will not apply to the present case.
3. THE COURT

HAS A MANDATE TO REFER THE PARTIES TO ARBITRATION UNDER

SECTION 8 OF THE ARBITRATION AND CONCILIATION ACT, 1996:

Section 8 of the The Act, empowers a judicial authority to refer parties to
arbitration
when there is an arbitration agreement, if a party so applies. The Petitioner seeks
reference to arbitration under this section as the section is peremptory in nature.
Since the
conditions for applying the section are satisfied, i.e. there is a valid
arbitration agreement,
the parties have applied before filing a first statement on the substance of the
dispute and
the subject matter of the arbitration agreement is the same as the subject matter
of the
suit, the power under Section 8 ought to be exercised to refer the parties to
arbitration.

xi
~Memorandum for Petitioner~

4. THERE

ARE NO CIRCUMSTANCES TO GRANT STAY OF THE

BANK GUARANTEE

IN

THE PRESENT CASE:

It is most humbly submitted that there are no circumstances to grant the stay of
the bank
guarantee since it is a subject matter of the arbitration agreement and the
jurisdiction of
the courts is ousted to this extent. Since the courts have followed the principle
of nonintervention in cases involving bank guarantees except in the case of fraud
or
irretrievable injustice which are both absent in the present case there is no
circumstance
for interference.

xii
~Memorandum for Petitioner~

ARGUMENTS ADVANCED
1. THIS SPECIAL LEAVE PETITION IS MAINTAINABLE BEFORE THIS HON’BLE COURT.
The Petitioner submits that this petition is maintainable before this Hon’ble
Court. This
Court has the power to grant special leave to Appeal under Art. 136 [1.1] and the
scope
of this jurisdiction is very wide [1.2]. The Court can interfere with an erroneous
order of
the High Court [1.3] as its powers are plenary [1.4].
1.1.

This Court has the power to grant special leave to appeal

It is respectfully submitted that the Petitioner has invoked the special appellate
jurisdiction of this Hon’ble Court under Art. 136 of the Constitution2. The Supreme
Court
of India has power to grant special leave to appeal from any judgment, decree,
determination, sentence or order, in any case or matter, passed or made by any
Court or
tribunal in the territory of India.
1.2.

Scope of this jurisdiction

It is humbly submitted by the Petitioner that the scope of the special appellate
jurisdiction
of the Supreme Court is very flexible. There are no words in Art. 136 itself
qualifying the
power of this Hon’ble Court and there is complete discretion to the Supreme Court.3
In
Kunhayammed v. State of Orissa,4 the Hon’ble Supreme Court has characterized its
power under Art. 136 as an “untrammeled reservoir of power incapable of being
confined
to definitional bounds; the discretion conferred on the Supreme Court being
subjected to
only one limitation, that is, the wisdom and good sense of justice of the judges.
Therefore, it is respectfully submitted that this Hon’ble Court can take up any
matter and
there is no limitation whatsoever imposed upon this Hon’ble Court provided the
discretion is exercised with wisdom and good sense of justice of the judges.

The Constitution of India, 1950.

BalakrishnaIyer v. Ramaswami Iyer, AIR 1965 SC 197.

Kunhayammed v. State of Orissa, (2000) 6 SCC 359.

1
~Memorandum for Petitioner~

1.3.

Erroneous judgment of the High Court

It is most respectfully submitted by the Petitioners that in Santhosh v. Mul

Singh,5 the
Hon’ble Supreme Court stated that the Supreme Court would intervene by granting
special leave when the High Court has given a judgment which is erroneous and which
has resulted in the failure of justice.
1.4.

Plenary powers of the Court:

This Hon’ble court in P.S.R. Sadhanantham v. Arunachalm And Anr6. held that:
“Article 136 is a special jurisdiction. It is residuary power; it is extraordinary
in
its amplitude, its limit, when it chases injustice, is the sky itself. This Court
functionally fulfils itself by reaching out to injustice wherever it is and this
power
is largely derived in the common run of cases from Article 136.”
2. THERE EXISTS A VALID ARBITRATION AGREEMENT BETWEEN THE PARTIES WHICH
IS NOT OPPOSED TO PUBLIC POLICY:

The Petitioner humbly submits that there is a valid arbitration agreement in the
present
case as the requirements of Sec. 7 of The Arbitration and Conciliation Act, 1996
(“The
Act”) are satisfied [2.1]. The arbitration agreement is not opposed to public
policy [2.2].
The terms of the agreement are to be construed to hold that Malaylaka is the venue
and
not the seat of arbitration [2.3] and therefore Part I of the Arbitration and
Conciliation
Act, 1996 will not apply to the present case [2.4].
2.1.

The requirements under Section 7 of The Act are satisfied:

“Arbitration agreement” means an agreement by the parties to submit to arbitration

all or
certain disputes which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not.7 The only requirements for
a valid
arbitration agreement is that it must be in writing and that it must be signed by
the parties

Santhosh v. Mul Singh, AIR 1958 SC 321.

P.S.R. Sadhanantham v. Arunachalm and Anr., (1980) 3 SCC 141.

Section 7(1) of the Arbitration and Conciliation Act, 1996.

2
~Memorandum for Petitioner~

where it is in a document.8 Further, the reference in a contract to a document

containing
an arbitration clause constitutes an arbitration agreement if the contract is in
writing and
the reference is such as to make that arbitration clause part of the contract.
In the present case, there exists an Arbitration Agreement in Clause 33.1 of the
Agreement between the Petitioner and Respondent which reads as follows:
“Both Parties agree to arbitrate in Malaylaka, and the law of Malaylaka will apply
to
this Agreement”.
The Petitioner submits that all the valid requirements under Sec. 7 of The Act are
thereby
satisfied and therefore there is a valid Arbitration Agreement in the form of
Clause 33.1
of the Agreement.9
The Court has always striven to understand the true intention of parties and
whether there
exists consensus ad idem.10 Also, in VISA International Ltd. v. Continental
Resources
(USA) Ltd.11 where the clause in question stated:

“any dispute arising out of this

agreement and which cannot be settled amicably shall be finally settled in

accordance
with the Arbitration and Conciliation Act, 1996”, the Court held that in spite of
the
respondent contending that the arbitration would not be cost effective and will be
premature, the Court held that there was an arbitration agreement between the
parties and the
petitioner was entitled to a reference under Sec. 11 of The Act. The Court reasoned
that
no party could be permitted to take advantage of inartistic drafting of an
arbitration clause
when clear evidence of intention to proceed for arbitration was evident from the
material
on record.
2.2.

The Arbitration Clause in 33.1 is not opposed to public policy:

2.2.1. “Public Policy” has no definition in law:

Section 7(2) and 7(3) of The Act.

K. K. Modi v. K. N. Modi, (1998) 3 SCC 573.

10

Shakti Bhog Foods Ltd. v. Kola Shipping Ltd., (2009) 2 SCC 134.

11
VISA International Ltd. v. Continental Resources (USA) Ltd., (2009) 2 SCC 55.

3
~Memorandum for Petitioner~

At common law an agreement which purports to oust the jurisdiction of the Court is
contrary to public policy and void.12 It is the policy of the common law that
citizens have
the right to have their legal position determined by the ordinary tribunals. In the
case of
arbitration, the common law position has been substantially modified by statute,
particularly in the case of arbitration involving foreign nationals and
companies.13 The
Petitioner submits that the term “public policy” has not been defined in Indian
law. Thus
reliance is placed on the interpretation of the term by the Supreme Court. The
Court has
held that in determining whether an act is opposed to public policy the following
are
relevant:


Contrary to the fundamental policy of Indian law;

Contrary to the interests of India;

Contrary to justice and morality; or

Patently illegal.14

Although the decision was rendered in terms of Sec. 34 of The Act, it is still
useful for
the determination of the meaning of public policy. It is submitted that in the
present case
none of the above said conditions are satisfied to declare Clause 33.1 in violation
of
public policy.
2.2.2. Two Indian Parties can refer to Arbitration under a foreign law:
The Petitioner submits that the contract between the parties relating to
arbitration is not
opposed to public policy under Sec. 23 read with Sec. 28 of the Indian Contract
Act,
1872 (“Contract Act”). The parties between whom the dispute arose, are both Indian
parties and the contract which had the effect of compelling them to resort to
arbitration
by foreign arbitrators and thereby impliedly excluding the remedy available to them
under the ordinary law of India is not opposed to public policy. Under Sec. 23 of
the

12

Czarnikow v. Roth Schmidt, [1922] 2 K.B. 478.

13

Ansons Law of Contract, (J Beatson, ed. 28th Edition Oxford University Press,
Oxford, 2002).

14

Associate Builders v. Delhi Development Authority, 2014 (4) ARBLR 307(SC); ONGC v.
Saw Pipes,
(2003) 5 SCC 705.

4
~Memorandum for Petitioner~

Contract Act the consideration or object or an agreement is unlawful if it is

opposed to
public policy.15 Sec. 28 of the Contract Act elucidates contracts that prevent
legal
recourse.16 The case at hand is clearly covered by Exception 1 to Sec. 28. Right of
the
parties to have recourse to legal action is not excluded by the agreement. The
parties are
only required to have their dispute/s adjudicated by having the same referred to
arbitration. Merely because the arbitrators are situated in a foreign country
cannot by
itself be enough to nullify the arbitration agreement when the parties have with
their eyes
open willingly entered into the agreement. This principle has been reiterated in
the case
of Atlas Export Industries v. Kotak & Co.17
Moreover, in the case at hand the parties have willing inserted an arbitration
clause in the
agreement between them. In Atlas Exports, Sec. 23 and 28 of the Contract Act were
considered and it was held that when a dispute arises where both the parties are
Indian,
and if the contract has the effect of compelling them to resort to arbitration by
foreign
arbitrators and thereby impliedly excluding the remedy available to them under the
ordinary law of India, the same is not opposed to public policy. Merely because two
Indian companies have entered into an arbitration agreement to be held in a foreign

15

23. What consideration and objects are lawful, and what not.—The consideration or
object of an
agreement is lawful, unlessit is forbidden by law; or is of such a nature that, if
permitted, it would defeat
the provisions of any law; or is fraudulent; or involves or implies, injury to the
person or property of
another; or the Court regards it as immoral, or opposed to public policy. In each
of these cases, the
consideration or object of an agreement is said to be unlawful. Every agreement of
which the object or
consideration is unlawful is void.
16

28. Agreements in restraint of legal proceedings, void- Every agreement, by which

any party thereto is
restricted absolutely from enforcing his rights under or in respect of any
contract, by the usual legal
proceedings in the ordinary tribunals, or which limits the time within which he may
thus enforce his rights,
is void to that extent.
Exception 1 “ This section shall not render illegal a contract, by which two or
more persons agree that any
dispute which may arise between them in respect of any subject or class of subjects
shall be referred to
arbitration, and that only the amount awarded in such arbitration shall be
recoverable in respect of the
dispute so referred.
17
Atlas Export Industries v. M/S Kotak & Co., (1999) 7 SCC 61 [“Atlas Exports”].

5
~Memorandum for Petitioner~

country by agreed arbitrators, that by itself is not enough to nullify the

arbitration
agreement.18
2.2.3. Intention of the parties is paramount
The intention of the parties to arbitrate has been emphasized by the Supreme Court
in the
case of Enercon (India) Ltd. And Ors. v. Enercon Gmbh And Ors.19 and if it is found
that
the intention of the parties was to resolve their dispute through arbitration, then
it is the
bounden duty of the Court to give effect to the intention of the parties. The
intention of
the parties; and, the principle of least intervention not only crystallized in the
case of
Enercon, but also in the case of Chatterjee Petroleum Company.20 It is submitted
that
once the parties have agreed to resolve their dispute by arbitration the Court
should not
interfere into the matter until and unless the agreement is itself found to be null
or void or
inoperative. The Supreme Court has impliedly allowed two Indian parties to
arbitrate
under a foreign law in the cases of Bharat Aluminium Co. v. Kaiser Aluminium
Technical
Services Inc.,21 Reliance Industries v. Union of India22 and Enercon.23
2.3.

Malaylaka is the venue of arbitration and not the seat of arbitration:

The Respondent humbly submits that in the present case the arbitration agreement
has to be
interpreted to decide whether the designation of Malaylaka is the venue or seat of
arbitration.
This Court has drawn a distinction between a ‘seat’ and ‘venue’ which would be
quite crucial
in the event, the arbitration agreement designates a foreign country as the ‘seat’/
‘place’ of the
arbitration and also select the Act as the curial law/ law governing the
arbitration

18

Sasan Power Limited v. North American Coal Corporation India P. Ltd., FA 310 of
2015 decided on 11
September, 2015 (Madhya Pradesh High Court) [“Sasan Power”].
19

Enercon (India) Ltd. And Ors. v. Enercon Gmbh And Ors., Civil Appeals 2086 & 2087
of 2014 decided
on February 14, 2014 (Supreme Court of India) [“Enercon”].
20

Chatterjee Petroleum v. Haldia Petro Chemicals, 2013 ARBLR (SC).

21

Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552.
[“BALCO”].

22

Reliance Industries v. Union of India, Arbitration Petition No. 27 OF 2013, decided

on 31 March, 2014
(Supreme Court of India).
23

Sasan Power, 310 of 2015 decided on 11 September, 2015 (Madhya Pradesh High Court).

6
~Memorandum for Petitioner~

proceedings.24In the case of Enercon the Court has applied the closest and most
real connection
test to determine the seat of arbitration.
International commercial arbitration often involves people of many different
nationalities, from
different countries. In these circumstances, it is by no means unusual for an
arbitral Tribunal to
hold meeting, or even hearing in a place other than the designated place of
arbitration, either
for its own convenience or for the convenience of the parties or their witnesses.
It may be more
convenient for an arbitral tribunal sitting in one country to conduct a hearing in
another
country, e.g. taking evidence. In such circumstances, each move of the arbitral
Tribunal does
not if itself mean that the seat of arbitration changes. The seat of the
arbitration remains the
place initially agreed by or on behalf of the parties, in order to determine the
curial law in the
absence of an express choice by the parties it is first necessary to determine the
seat of the
arbitration, by construing the agreement to arbitrate.25
In a case, the Supreme Court of India believed that the parties had made no choice
on the seat.
They disregarded the language “The venue of the arbitration proceedings shall be
London”
holding that this sentence only indicated the parties’ choice of a convenient
“venue” for their
hearings, never mind the fact that there was no indication in the current case that
suggested that
London would be convenient.26
In the same case, the court held that the express mention in the arbitration clause
that London
was the venue of the arbitration could not lead to the inference that London was to
be the Seat
because although London was termed as the venue, the law governing the substantive
contract,
the law governing the arbitration agreement and the law governing the conduct of
the arbitration
were chosen to be Indian law and the closest and most real connection was with
India. Once the
Seat was in India, Indian Courts would have exclusive supervisory jurisdiction.27
Furthermore,

24

BALCO, (2012) 9 SCC 552.

25

M/s. Dozco India Pvt. Ltd. v. M/s. Doosan Infracore Co. Ltd., (2011) 6 SCC 179.

26

Enercon, Civil Appeals 2086 & 2087 of 2014 decided on February 14, 2014 (Supreme
Court of India).
27

Ibid.

7
~Memorandum for Petitioner~

seat of arbitration would remain in India which is the natural forum for all
remedies in relation to
the disputes, having such a close and intimate connection with India.
In the present case, both the parties are registered in Zelcova and the subject
matter of the
contract is also Zelcova. Thus, the intention of the parties must be understood to
mean that the
seat of arbitration is Zelcova, and the Zelcovan laws will be applicable to the
arbitration.
However, the venue of arbitration is Malaylaka and the substantive law governing
the contract
is Malaylakan laws.
2.4.

Part I of the Act will be applicable to the present proceedings:

It is submitted that Part I of The Act is applicable to International Commercial

Arbitration
seated in India by virtue of Sec. 2(2) of The Act. Also in view of the categorical
judgment in
the BALCO28 case. Part I of The Act will apply both to domestic arbitration as well
as to
international commercial arbitrations with seat in India. The substantive law
governing the
contract between the parties will be the laws of Malaylaka.
3. THE COURT

HAS A MANDATE TO REFER THE PARTIES TO ARBITRATION UNDER

SECTION 8 OF THE ARBITRATION AND CONCILIATION ACT, 1996:

Sec. 8 of The Arbitration and Conciliation Act, 1996 empowers a judicial authority
to
refer parties to arbitration when there is an arbitration agreement, if a party so
applies. A
judicial authority includes a court defined under Sec. 2(e) of The Act. The
Petitioner
seeks reference to arbitration under this Section as the Section is peremptory in
nature
[3.1.] since the conditions for applying the Sec. are satisfied [3.2].
3.1.

Section 8 of The Act is peremptory in nature and the parties must be

referred to arbitration under the same:

The parties must be referred to arbitration by the court under Sec. 8 of The Act
which is
peremptory in nature. Where there is an arbitration agreement between the parties,
they
should ordinarily be held bound by their agreement and should not be permitted to
initiate

28

BALCO, (2012) 9 SCC 552.

8
~Memorandum for Petitioner~

any legal proceedings other than arbitration proceedings relating to the dispute
falling
within the arbitration clause. 29
Sec. 5 of The Act says that judicial intervention in arbitration proceedings should
be kept
to a minimum. However, it is possible to identify at least three situations in
which the
intervention of the court may be necessary in arbitration proceedings. These are:
1. Commencing the arbitration- enforcing the agreement, establishing the tribunal,
and interim measures and reliefs
2. During the arbitration
3. Enforcement of award.30
Sec. 5 does not have a bearing in the interpretation of Sec. 8, because it only
contemplates that in matters governed by Part I of The Act, the judicial authority
shall not
intervene except when so provided in The Act. Excepting Sec. 8 there is no other
provision in The Act that in a pending suit, the dispute is required to be referred
to
Arbitration.
The existence of an arbitration agreement between TPL and CCZPL mandates that a
matter of dispute brought before any judicial authority concerning the agreement
must be
referred to arbitration by such judicial authority. In Agri Gold Exims Ltd. v. Sri
Lakshmi
Knits & Wovens & Ors,31 the Supreme Court reiterated that Sec. 8 of The Act is
peremptory in nature and in a case where there exists an arbitration agreement the
Court
is under obligation to refer the parties to arbitration in terms of the arbitration
agreement,
relying on Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums.32
Clause 33.1 is the arbitration agreement between TPL and CCZPL and in accordance

29

Pradeep Anand v. ITC, AIR 2002 SC 2799.

30

Ashwinie Kumar Bansal, ARBITRATION: PROCEDURE AND PRACTICE, 538 (1st edn., Lexis
Nexis
Butterworths, New Delhi, India, 2009).
31

Agri Gold Exims Ltd. v. Sri Lakshmi Knits & Wovens & Ors., (2007) 3 SCC 686.

32

Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums, (2003) 6 SCC

503.

9
~Memorandum for Petitioner~

parties must be referred to arbitration. The court cannot deny the parties the
right to be
referred to arbitration when an application under Sec. 8 of The Act is made.
3.2.

Conditions for applying Section 8 of The Act are satisfied

An analysis of Sec. 8 of The Act would show that for its applicability, the
following
conditions must be satisfied:
(a) That there exists an arbitration agreement;
(b) That action has been brought to the court by one party to the arbitration
agreement against the other party;
(c) That the subject matter of the suit is same as the subject matter of the
arbitration
agreement;
(d) That the other party before he submits his first statement of the substance of
the
dispute, moves the court for referring the parties to arbitration; and
(e) That along with the application the other party tenders the original
arbitration
agreement or duly certified copy thereof.
The SC stated that Section 8 is in the form of legislative command to the court and
once
the prerequisite conditions are satisfied, the Court must refer the parties to
arbitration.33
The Petitioner submits that the prerequisite conditions are satisfied.
3.2.1. Arbitration Agreement
The two conditions (a) and (b) are satisfied as Clause 33.1 is the arbitration
agreement
between the two parties (TPL and CCZPL) and action has been brought to the court by
TPL

against

CCZPL

for

invoking

33

the

Bank

Guarantee.

Branch Manager, Magma Leasing & Finance Limited & Anr. v. Potluri Madhavilata &
Anr., (2009) 10
SCC 103.

10
~Memorandum for Petitioner~

3.2.2. Subject matter of the Suit and the Arbitration Agreement is the same
The third condition to be satisfied is that the subject matter of the suit and the
arbitration
agreement must be the same. TPL has approached the court to refrain CCZPL from
invoking the Bank Guarantee. CCZPL would take recourse to recovery of payments as
TPL has failed to pay the dues to CCZPL for four shipments and delivery of future
shipments by CCZPL couldn’t be made henceforth. Thus a dispute between the parties
with regard to payment of dues and shipments would be a subject matter of the
arbitration
agreement. Law is well settled that arbitration clause may be incorporated by
reference to
a specific document which is in existence and whose terms are easily ascertainable.
It is
to be noted, however, that the question whether or not the arbitration clause
contained in
another document is incorporated in the contract, is always a question of
construction.34
3.2.3. First statement on subject of dispute is not submitted by the other party,
i.e. no
waiver of rights
The Petitioner has not waived its right of Arbitration. When ex parte orders are
made at
the back of the party (TPL) the other party (CCZPL) is forced to come to the court
to
vindicate its right. Such compulsion cannot disclose an unambiguous intention to
give up
the benefit of the arbitration agreement. Therefore, taking any other steps in the
proceedings must be confined to taking steps in the proceedings for resolution of
the
substantial dispute in the suit. Appearing and contesting the interlocutory
applications by
seeking either vacation thereof or modification thereof cannot be said to be
displaying an
unambiguous intention to acquiesce in the suit and to waive the benefit of the
arbitration
agreement. The expression 'first statement on the substance of the dispute'
contained in
Sec. 8(1) of The Act must be contra-distinguished with the expression 'written
statement'.
It employs submission of the party to the jurisdiction of the judicial authority.
Therefore
what is required is a finding by the judicial authority that the party has waived
its right to
invoke arbitration. If an application is filed before actually filing the first
statement on the
substance of the dispute, in our opinion, the party cannot be said to have waived
his right

34

M. Dayanand Reddy v. A.P. Industrial Infrastructure, 1993 AIR 2268.

11
~Memorandum for Petitioner~

or acquiesced himself to the jurisdiction of the court. What is, therefore,

material is as to
whether the first statement on the substance of the dispute has been filed or not,
if not, the
application under Sec. 8 of The Act may not be held wholly unmaintainable.35 The
Petitioner has filed detailed statement of objections to the said stay application
and
instead of filing written statement made an application under Sec. 8 of The Act
seeking
dismissal of suit as not maintainable. The City Civil Court did not pass any order
regarding the same. But filing of a reply by a Defendant, to an application for
temporary
injunction/attachment before judgment/appointment of Receiver, cannot be considered
as
submission of a statement on the substance of the dispute, as that is done to avoid
an
interim order being made against him.36
In Rashtriya Ispat Nigam Ltd.37, this Court held that the expression ‘first
statement on the
substance of the dispute’ contained in Sec. 8(1) of The Act is different from the
expression ‘written statement’, and refers to a submission of the party making the
application under Sec. 8 of The Act, to the jurisdiction of the judicial authority;
and what
should be decided by the court is whether the party seeking reference to
arbitration has
waived his right to invoke the arbitration clause. This Court then proceeded to
consider
whether contesting an application for temporary injunction amounted to waiver.38
Sec. 8
of The Act inter alia, seeks to remedy the defects noticed in the working of Sec.
34 of
The Arbitration and Conciliation Act, 1940 (“Old Act”). Sec. 8 of The Act mandates
that
a judicial authority before whom an action is brought, which is the subject of an
arbitration agreement between the parties, shall refer the parties to arbitration.
The
Supreme Court, while interpreting the provisions of The Act, has held that Sec. 8
of The

35

Rashtriya Ispat Nigam Ltd. v. M/S. Verma Transport Co., 2006 (7) SCC 275
[“Rashtriya Ispat Nigam
Ltd.”].
36

M/s. Johnson Rubber Ind Ltd. v. M/s. Shree Conveyor System Pvt. Ltd., C.M.(M)
No.960/2013 &
C.M.No.14494/2013 (Stay), decied on 16th October 2014.
37

38

Rashtriya Ispat Nigam Ltd., 2006 (7) SCC 275.

Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd. and Ors., AIR 2011 SC 2507.

12
~Memorandum for Petitioner~

Act is not in pari materia with Sec. 34 of the Old Act and that the two provisions
are
distinct and different from each other.39
Appearing and contesting the interlocutory applications by seeking either vacation
thereof or modification thereof cannot be said to be displaying an unambiguous
intention
to acquiesce in the suit and to waive the benefit of the arbitration agreement. Any
other
view would both be harsh and iniquitous and contrary to the underlying intendment
of
The Act.
The test applied was that an application by a party to the suit has to be examined
keeping
in view the purpose and the object of the section which is to direct parties to
resolve the
dispute by what they have agreed and whether from the conduct of the party making
an
application there was a clear intention to acquiesce in the suit. The question then
was
answered in the following affirmative words:
"Having thus critically examined both on principle and precedent, the meaning to be
given to the expression "taking steps in the proceedings", we are clearly of the
view that
unless the step alleged to have been taken by the party seeking to enforce
arbitration
agreement is such as would display an unequivocal intention to proceed with the
suit and
acquiesce in the method of resolution of dispute adopted by the other party,
namely, filing
of the suit and thereby indicate that it has abandoned its right under the
arbitration
agreement to get the dispute resolved by arbitration, any other step would not
disentitle
the party from seeking relief under section 34. It may be clearly emphasized that
contesting the application for interim injunction or for appointment of a receiver
or for
interim relief by itself without anything more would not constitute such step as
would
disentitle the party to an order under section 34 of the Act."40
By opposing the prayer for interim injunction, the restriction contained in sub-
section. (1)
of Sec. 8 was not attracted. Disclosure of a defence for the purpose of opposing a
prayer
for injunction would not necessarily mean that substance of the dispute has already
been
disclosed in the main proceeding. Supplemental and incidental proceedings are not
part
of the main proceeding. Incidental proceedings are those which arise out of the
main

39

Kalpana Kothari v. Sudha Yadav, (2002) 1 SCC 203.

40

Food Corporation of India and Anr. v. Yadav Engineer and Contractor, AIR 1982 SC
1302; Jashu M.
Patel v. Shivdatta R. Joshi, 2003 (2) ARBLR 479 (Bom).

13
~Memorandum for Petitioner~

proceeding. In view of the decision of this Court in Food Corporation of India v.

Yadav
Engineer and Contractor41, the distinction between the main proceeding and
supplemental proceeding must be borne in mind. Waiver of a right on the part of a
Defendant to the lis must be gathered from the fact situation obtaining in each
case. In the
instant case, the court had already passed an ad interim ex parte injunction. The
Appellants were bound to respond to the notice issued by the Court. When Plaintiffs
file
applications for interim relief like appointment of a receiver or grant of a
temporary
injunction, the Defendants have to contest the application. Such contest may even
lead to
appeals and revisions where there may be even stay of further proceedings in the
suit. If
supplemental proceedings like applications for temporary injunction on appointment
of
Receiver have been pending for a considerable time and a Defendant has been
contesting
such supplemental proceedings, it cannot be said that the Defendant has lost the
right to
seek reference to arbitration.
3.2.4. Existence of valid arbitration agreement
There exists a valid arbitration agreement (Clause 33.1) according to Sec. 7 of The
Act.
All the prerequisite conditions have been satisfied and hence the Court must refer
the
parties to arbitration.
4. THERE

ARE NO CIRCUMSTANCES TO GRANT STAY OF THE

BANK GUARANTEE

IN

THE PRESENT CASE:

It is most humbly submitted that there are no circumstances to grant the stay of
the bank
guarantee since it is a subject matter of the arbitration agreement [4.1] and the
jurisdiction of the courts is ousted to this extent [4.2]. Since the courts have
followed the
principle of non-intervention in cases involving bank guarantees [4.3] except in
the case
of fraud or irretrievable injustice which are both absent in the present case
[4.4], there is
no circumstance for interference.

41

Food Corporation of India and Anr. v. Yadav Engineer and Contractor, AIR 1982 SC
1302.

14
~Memorandum for Petitioner~

4.1.

The Bank Guarantee is also covered by the subject matter of the

arbitration agreement:

The Arbitration and Conciliation Bill, 1995 which preceded the 1996 Act stated as
one of
its main objectives the need ‘to minimize the supervisory role of courts in the
arbitral
process.’42 This objective has found expression in Sec. 5 of The Act which
prescribes the
extent of judicial intervention in no uncertain terms. The issue brought before the
City
Civil Court by the respondents is the subject-matter of an arbitration agreement.
The City
Civil Court being a judicial authority is under a duty under law to refer the
parties to
arbitration according to Sec. 8 of The Act as argued in 3.2.2 above.
4.2.

The jurisdiction of the Civil Court is ousted:

It has been held in Arti Jethani v. Daehsan Trading (India) Pvt Ltd.43 that “No one
can dispute that a Civil Court has no jurisdiction to entertain the suit
after application under Section 8 of the Act is filed but this would be subject to
the
application otherwise being in conformity with the requirements of the said
Section. The jurisdiction of the Civil Court is not ousted on account of an
arbitration agreement between the parties. It is ousted because of an application
filed under Section 8 of the Act provided it otherwise confirms to the requirements
laid down in the Section.”
Petitioner submits that the jurisdiction of the court is ousted because the issues
raised
before the Hon’ble Court is subject to arbitration and accordingly the Petitioners
have
filed an application under Sec. 8 of The Act to bring up the issue before the
Arbitral
Tribunal. Therefore, the court cannot pass a stay order against the Petitioners to
invoke
the bank guarantee.
In Hindustan Paper Corporation Ltd. v. Keneilhouse Angami44, the learned single
judge
had directed that disputes between the parties be referred to arbitration and such
direction

42

Union Of India v. Popular Construction Co., 2001 Supp (3) SCR 619.

43

Arti Jethani v. Daehsan Trading (India) Pvt Ltd., 2011 (4) AD DEL 668 ¶ 11.

44

Hindustan Paper Corporation Ltd. v. Keneilhouse Angami , [1990] 68 Comp Cas 361.
15
~Memorandum for Petitioner~

included adjudication by arbitration in respect of the right of the beneficiary

against the
bank arising out of the bank guarantee although the bank was not a party to the
arbitration
clause. It was held by the Hon’ble Division Bench of the High Court of Calcutta in
the
case, after referring to earlier judgments of the High Court of Calcutta and
certain other
judgments, as under :
(i) The bank and the beneficiaries are the only parties in bank guarantee.
(ii) The right of the beneficiary under a bank guarantee to enforce payment under
the
bank guarantee is governed by the bank guarantee itself and not by the terms and
conditions of the original contract.
(iii) The bank guarantee is a contract from the original contract pursuant to which
the
bank guarantee is furnished.
(iv) The bank is not a party to the original contract or to the arbitration clause.
(v) The arbitration clause contained in the main contract is not part of the
contract of
bank guarantee. The said arbitration binds the bank but does not cover the dispute
arising
out of the contract of bank guarantee which contract is separate and independent of
the
main contract.
(vi) A sclaim arising out of the bank guarantee is not a dispute arising out of the
original
contract.45
Recently, this Hon’ble Court has reiterated the principle of non-interference in
the case of
M/s. Sundaram Finance Ltd. and Anr. v. T. Thankam46:
“Once an application in due compliance of Section 8 of the Arbitration Act is
filed, the
approach of the civil court should be not to see whether the court has
jurisdiction. It
45

Suresh Arjundas Bakhtiani v. Union Of India And Anr., 1991 (1) BomCR 26.

46

M/s. Sundaram Finance Limited and Anr. v. T. Thankam, 2015 (2) R. A. J. 526 (SC).

16
~Memorandum for Petitioner~

should be to see whether its jurisdiction has been ousted. There is a lot of
difference
between the two approaches. Once it is brought to the notice of the court that its
jurisdiction has been taken away in terms of the procedure prescribed under a
special
statue, the civil court should first see whether there is ouster of jurisdiction in
terms or
compliance of the procedure under the special statute. The general law should yield
to
the special law – generalia specialibus non derogant. In such a situation, the
approach
shall not be to see whether there is still jurisdiction in the civil court under
the general
law. Such approaches would only delay the resolution of disputes and complicate the
redressal of grievance and of course unnecessarily increase the pendency in the
court.”
4.3.

The Courts have followed the principle of non-interference in

encashment of bank guarantees:

The Supreme Court affirming long standing jurisprudence on the subject in the
aforementioned case of UP State Sugar Corporation v. Sumac International Ltd47
stated
that whenever a bank guarantee is sought to be encashed by the beneficiary, the
bank is
bound to honour the guarantee irrespective of any dispute raised by the customer
against
the beneficiary. This is however subject to two exceptions that is, a fraud
committed in
the notice of the bank which would vitiate the very foundation of the guarantee or
encashment of the bank guarantee would result in irretrievable harm or injustice of
the
kind which would make it impossible for the guarantor to reimburse himself.
It was held by the Hon’ble Supreme Court in its judgment in Tarapore & Co. Madras
v.
M/s. V/o Tractors Export, Moscow & Anr.48 that the obligation of the bank to pay
the
amount in terms of a bank guarantee or letter of credit was absolute, irrespective
of
disputes between the parties under the original contract. The same view was taken
by the
Hon’ble Supreme Court in several other cases and it cannot be now disputed that the
rights and obligations under a bank guarantee are to be viewed independently of the
disputes between the parties to the main contract.

47

UP State Sugar Corporation v. Sumac International Ltd., AIR 1997 SC 1644.

48

Tarapore & Co. Madras v. M/s. V/o Tractors Export, Moscow & Anr., [1969] 2 SCR 920.

17
~Memorandum for Petitioner~

4.4.

There is no fraud or irretrievable injustice in the present case:

What is necessary for the Bank to refuse payment is a case of clear "fraud" and the
Bank's knowledge as to such fraud49. As pointed by Lord Denning and Lord Lane in
Edward Owen Engineering Ltd. v. Barclays Bank International Ltd.,50 the Bank cannot
refuse payment merely because according to it the claim was “dishonest” or
“suspicious”
or it appeared to be a sharp practice but it must be established as “fraud”. Lord
Ackner in
United Trading Corpn. S.A. & Murray Clayton Ltd. v. Allied Arab Bank Ltd.51 held
that
the Bank could object to pay not because the demand was not "honestly" made but was
made fraudulently. Waller, J. in Turkiye v. Bank of China52 said that the question
was
whether the demand for payment was “fraudulent”. Mere allegations and
counterallegations between the parties as to breach of contract, non-payment of
advances or nonsupply of machinery did not amount to fraud.53
The existence of any dispute between the Appellant and Respondent with regard to
the
underlying contract cannot be a ground for issuing an injunction to restrain the
enforcement of the Bank Guarantee as the very purpose of the guarantee would then
be
defeated.54

49

Bolivinter Oil S.A. v. Chase Manhattan Bank N.A. [1984] 1 LLR 392.

50

Edward Owen Engineering Ltd. v. Barclays Bank International Ltd. (1978) 1 All ER
976: 1978 QB 159:
(1977) 3 WLR 764, CA.
51

United Trading Corpn. S.A. & Murray Clayton Ltd. v. Allied Arab Bank Ltd., [1985] 2
LLR 554, CA.

52

Turkiye v. Bank of China, [1996] 2 LLR 611.

53

Zillion Infra Projects (P) Ltd. v. Fab-Tech Works & Constructions Pvt. Ltd. & Anr.,
224 (2015) DLT
371. [“Zillion Infra Projects”].
54

Zillion Infra Projects, 224 (2015) DLT 371.

18
~Memorandum for Petitioner~

PRAYER

In light of the issues raised, arguments advanced and authorities cited, the
counsel for the
Petitioner humbly prays that this Hon’ble court may be pleased to:

1.

Uphold the order of the High Court in vacating the stay of the Bank Guarantee;

2.

Hold that Clause 33.1 of the Agreement between the Petitioner and Respondent
are not opposed to the public policy of Zelcova;

3.

Refer the parties to Arbitration under Section 8 of the Arbitration and

Conciliation
Act, 1996;

4.

Pass any or other such orders that it may deem fit in the interest of justice.

Dated this 3rd day of April 2016.

COUNSEL FOR PETITIONER

19